Mediation

Win-win alternatives for conflict resolution

One of the articles in The Foundations Of Peace (IC#4)
Originally published in Autumn 1983 on page 29
Copyright (c)1983, 1997 by Context Institute


When people go to war (either with their neighbors or the next nation), they often say they had no choice. Whether or not that is true, it certainly is true that people generally have very little knowledge of or experience with the many non-violent alternatives available for resolving conflicts. Jessie Dye is one of a growing number of people who are working to change that. She is a lawyer in Seattle, and has shifted most of her practice into mediation.

AS LONG AS there are two human beings within a day’s journey of each other, there is a great likelihood of conflict. Being in mortal form with personalities and egos, opinions and sexes, as well as a strong bent toward living in large groups and developing cultures, we humans are different, one from the other. Out of these differences (and in fact, often out of our similarities) will come disagreement and conflict as surely as rain comes from clouds in the Pacific Northwest.

Conflict itself is a neutral term, like power or energy. If you sit down with a clean sheet of paper and on one side write a list of what is positive in conflict and on the other side make a list of that which is negative, your two lists will be about the same length. Conflict can promote intimacy, cause growth, be a vehicle for self-awareness, promote trade, heighten sexual interest, increase knowledge of the world, encourage cultural exchange.

It is our beliefs about conflict and our methods of handling it that cause the problems. Belief systems that hold that “differences are bad,” that “for me to win, you must lose,” that “we are separate from each other,” are beliefs about conflict that will lead to difficulties in problem solving.

Violence is the ultimate form of disconnection and alienation. It is non-problem solving behavior carried to its logical conclusion. As such, violence is the result of personal or cultural values which require behaviors of extreme submission or passivity on the one hand, or extreme dominance and need to conquer on the other. Both of these are role choices in a dispute situation, not problem-solving choices. Violence does not come from healthy aggression and assertiveness, nor does it automatically result from conflict over differences.

What we are talking about here is the conflict management styles and behaviors on the part of individuals in a culture, or of the culture itself. These behaviors can be sketched on a graph with one axis representing the amount of assertiveness and energy put into a dispute and the other representing the amount of cooperation. (See the following figure.)

Individuals or cultures who choose complete dominance or submission are working in a win-lose mode. This promulgates violence because we are not separate, but are all part of a whole system. When one part of a system is discounted it will ultimately retaliate. This is true whether it is one of your own subpersonalities or peasants in Central America. In reality, there is no such thing as a win-lose solution. Such a solution is lose-lose, because when one part loses, all parts eventually lose. Remember the tragedy of the commons.

The only dispute resolution method which ultimately can support a sustainable culture is a win-win model of collaboration. This requires a maximum of assertiveness as well as a maximum of cooperation. It requires that individuals be willing to face each other and air their own grievances, that they listen to the other do the same, that they take the time to explore differences and options, and it requires a system that encourages this kind of win-win dialogue. There is such a system emerging, though it is a relatively new cultural form in American society. Before we examine that, however, let us look at our currently available models of dispute resolution.

Current Paradigms of Law and Justice

All this talk of win-win dispute resolution means nothing if it cannot be applied by the average person to the average dispute. What do you do when your neighbor’s dog barks constantly and is driving you crazy?

In an average American city or town you have basically the same options. We will examine them in order of escalating hostility. (See the following figure.)

The first option you have in your dispute with your neighbor is to do nothing. This is called avoidance. Avoidance takes two forms, denial or “lumping it.” In denial, the person blocks from his/her own consciousness their own feelings of distress, and realization that a problem exists for them. What barking? This is a submission mode: you win, I lose. Obviously, no problem-solving can occur in this framework. Additionally, the denied feelings may ultimately burst out in the form of rage, illness, or cultural violence like child abuse, bitter divorce proceedings, or alcoholism. “Lumping it” means that an individual knows they have a problem but for strategic reasons chooses not to bring it up to the other party. This can be a form of submission, or it can be part of a larger interaction in which the possible gain is not worth the possible loss. Getting the dog to stop barking is not worth offending your neighbor and losing his cooperation in building the fence.

The next move a person with a grievance can do is to bring it up with the other party and try to negotiate a solution. This is potentially the best and cheapest method of solving the problem. It assumes, however, that the aggrieved has the courage to speak to his neighbor, that the neighbor, too, understands the value of negotiation. It also assumes that both parties have the time and the skill to negotiate, the desire to do so, and are aware of the process of finding possible solutions.

Mediation, the dispute resolution form best suited to produce win-win solutions, is an extension of the negotiation process with the aid of a third party, the mediator. The mediator does not represent either side, for the process is not adversarial. The mediator represents the principle of peaceful dispute resolution. The mediator does not produce a solution, either, but works with the parties to find their own solution. It is their agreement. The mediator provides the context for negotiation, and often teaches the parties the process of negotiation itself. This is the kind of justice system that would be found in a sustainable culture. It has yet to be widely applied in this country, and in most cities it is unlikely that you and your neighbor would have access to a mediation service. In the next section, we will look at its potential more closely.

If negotiation fails or is never tried, the next step in increasing escalation is to enter the legal process. There simply are no generally available means for dispute resolution between “lumping it” and “suing them” except some forms of relationship therapy or counseling. Since it is unlikely that your neighbor will go with you to the marriage counselor, your next choice is to see a lawyer.

At this point two things happen. First, the stance of the parties becomes adversarial and competitive. The goal in the legal system is to have your side win as opposed to finding the best solution. Secondly, control of the process leaves the hands of the disputants themselves and enters the hands of the experts – lawyers and judges trained in principles of law but not in human communication. The decision will come from above; the parties have surrendered their power.

Arbitration and adjudication are both legal processes involving win-lose paradigms. They are similar in that the decision in both cases is made by a third party (the arbitrator or judge) based on adversarial positions, and the decisions are legally binding. Arbitration is a less formal and more gentle process, as well as usually much quicker. The rules of evidence in arbitration are far more relaxed and less stylized than in a judicial proceeding, and arbitration is usually voluntary whereas trial proceedings are not.

If the individual does not use the legal system, or is unsatisfied with the result, the next step of escalation is “self-help” in terms of war or violence. You can shoot your neighbor and/or his dog. The process at this stage has become a lose-lose interaction, with the initiating side risking as much as the non-initiating side. Nuclear war is the most extreme example of this kind of lose-lose method of dispute resolution.

The Mediation Method: Whole System Justice

The mediation process compares favorably with the legal system in many respects (see table below). Because it encourages the parties to communicate with each other openly and fully, it offers psychological satisfaction not available in the limited “testimony” allowed in court. Because the parties talk until they reach a solution, it often produces a workable, satisfying result in a way not possible from an adjudicated decision. The process of mediation is cheaper, quicker, and in many cases fairer than the average lawsuit. Perhaps more importantly, mediation builds community because it encourages conversation between the parties and upholds their ongoing relationship. It does not encourage distortion of the facts to gain a “victory.”

As wholistic health is to the allopathic medical paradigm, so mediation is a kind of wholistic justice when compared to the Western legal system. Like wholistic health, mediation values well-being for all parts of the system. Also like wholistic health, mediation is not always a substitute for its more invasive counterpart, but could be used effectively in the majority of cases now crowding our court calendars.

Some cases are not generally considered appropriate for mediation. Where one party is incompetent because of age or infirmity, the adversarial system may provide needed protection. Felonies involve an offense to society as well as to the victim, and some element of social sanction is necessary over that available through mediation. However, garden-variety disputes like landlord- tenant, merchant-consumer, neighbor-neighbor, divorce and child custody can most effectively be handled by mediation.

Local Models Of Peace-Making For A Planetary Society

The questions of peace and disarmament are among the most urgent of our time. Yet it often seems there is little the average individual can do to halt the arms race or encourage dialogue between north and south, east and west. This can lead to a sense of powerlessness and despair.

There is, however, a great deal that a person can do in creating and choosing strategies for their own small- scale disputes. You can work it out with your neighbor and his dog. Many individuals and small groups are currently working together to establish neighborhood justice systems based on win-win mediation models. This is peace-making on a local level, a necessary step between the individual spiritual healing process and world peace.

There is at least one historian who contends that change happens from the bottom up in the evolution of human societies, and that governments are the last to reflect change in popular culture. At a certain point in the coming decade, then, it seems likely that the people in this country will be able to require peacemaking from their government because they will have created hundreds of small systems in which they have proven it is workable to solve problems from a win-win, whole system perspective. These neighborhood justice systems will become models for planetary peacemaking.


Old and New Paradigms in Dispute Resolution

 Law  Mediation
 Win-lose outcome  Win-win outcome
 Positions of the parties are adversarial  Positions of the parties are cooperative
 Requires extensive, expensive training and knowledge of esoteric language and systems (expert- based)  Requires common sense and some training in dispute resolution (lay-person based)
 Follows principles established sometimes hundreds of years ago in different setting, outcome based on precedent  Works with what is reasonable to the parties in this situation, outcome based on fairness and reality-testing
 Very expensive, from $50-120/hour per side  Usually free with volunteer mediators; private mediators run from $50-75/hour for both parties
 Prohibits conversation between the primary stake-holders to the dispute (lawyer-lawyer only)  Requires conversation between the parties
 Encourages distorting information to make other party wrong, “characterizing the facts”, i.e., lying  Encourages truth-telling, reality-testing, recognizes that there is truth on both sides
 Tends to reinforce already existing power structure  Tends to equalize power between the parties, promotes justice
 Often destroys possibility of any future relationship between the parties, fosters alienation  Encourages on- going relationships of the parties, builds community
 Frequently takes years to resolve a dispute  Resolves disputes in weeks if not days
 Is costly to the taxpayer – court time costs about $500/hour for administrative expenses  Is relatively cheap using available space and generally volunteer mediators
 Decisions made by others  Solutions found by the parties

Resources

If you want to find out more about mediation, I can suggest the following places to start:

Books

Getting To Yes by Roger Fisher and William Ury (New York: Penguin Books, 1983). This delightful and popular book on negotiation is an excellent primer for those new to the field of negotiation and mediation. They don’t cover all effective styles of negotiation, but they do an excellent job with the approaches they do discuss

The Disputing Process: Law In Ten Societies edited by Nader and Todd (New York: Columbia Univ. Press, 1978). This technical anthropological work can be difficult reading, but the subject matter is fascinating since it provides a cross-cultural perspective on conflict resolution.

Alternative Means Of Family Dispute Resolution compiled by the Special Committee On Alternative Means Of Dispute Resolution (Chicago: American Bar Association, 1982). This is one of many titles published by this committee which present various aspects of dispute resolution. There is a selected bibliography, a list of all programs in this field in the country as of 1982, and compilations of Law Review articles that would particularly interest attorneys. Contact the American Bar Association in Chicago to get a list of publications by this committee.

Other well known authors in the field are Gail gingham, James Lowe, Jerry Cormick, Susan Carpenter, Larry Ray and Frank Sanders. Coogler and Haynes are the big names in divorce/custody mediation books.

Community Services (I am mainly familiar with the Seattle area, but there are similar programs in other parts of the country.)

The Seattle Library, Education section, has a dispute resolution project. It offers bibliographies and other material on the subject.

Washington Arbitration Services is an impartial dispute settlement organization offering general civil arbitration, mediation and education. You can get information on this state-wide program by calling their Seattle office at 285- 4885.

The Better Business Bureau has a national Consumer Mediation and Arbitration project which is helpful for folks with merchant-consumer disputes. They have offices in most major cities.

There are many attorneys and therapists in private practice in divorce and child custody mediation. Divorce Lifeline in Seattle, The Family Court of King County, and the Mediation Consortium of Washington State are sources of information in this field.

The Rental Housing Mediation Service of the Volunteers of America is a free landlord-tenant dispute resolution service. It is in Snohomish County, and is the only one of its kind in Washington State.

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